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Date: 01-12-2017

Case Style: Cynthia L. Aiken v. David W. Aiken

Case Number: 92631-0

Judge: Gonzalez

Court: Supreme Court of Washington

Plaintiff's Attorney: Aaron Lee Shields

Defendant's Attorney: Gail Nunn

Mark Ferraz and Jennifer Ammons for Amicus Curiae on behalf of Northwest Justice Project

Laura Kristine Clinton, David Scott Law and David Ward for Amicus Curiae on behalf of Legal Voice and Amicus Curiae on behalf of Washington State COAlition Against Domestic Violence

Description: Trial courts must make difficult decisions when competing
interests clash. In this case, a mother sought an emergency protection order to
keep her soon-to-be ex-husband away from her and their children because, she
alleged, he had abused them. The father denied the allegations and sought to
cross-examine one of the daughters about her claim that he had repeatedly tried to
suffocate her, among other things. Evidence was presented that the daughter was
suicidal, was unable to confront her father, and would be significantly traumatized
by this cross-examination. We must decide whether the father had a constitutional
or statutory right to question his minor daughter in court before the protection
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
order could be issued. Finding under the facts ofthis case that he did not, we
Shortly before Thanksgiving in 2014, R.A. took an overdose of prescription
medication in part to avoid visiting her father, David Aiken. Fourteen-year-old
R.A. told a social worker that she attempted self-harm a year earlier and revealed
that her father had been "verbally and physically abusive to her and her sisters."
Clerk's Papers (CP) at 253-54. R.A. was taken to the hospital, and her counselor
reported these allegations to Child Protective Services.
In 2013, R.A. 's parents, David and Cynthia Aiken, had agreed to dissolve
their marriage. Since approximately February 2014, R.A. had been seeing a
counselor and a psychiatrist for depression, posttraumatic stress disorder, and
suicidal ideation. R.A. told her counselor that her father had often called her
names. The record suggests that R.A. was too afraid of her father to be honest
about her feelings around him; she would always try to act or say things "just
right" to "avoid his wrath." Sealed Clerk's Papers (SCP) at 446.
Strikingly, R.A. reported that her father "trie[d] to suffocate her" and had
been doing it for years. SCP at 392. According to R.A., David1 would hide under
1 Because Cynthia and David Aiken shared a surname during the relevant period for this case, we
refer to them by their first names. We intend no disrespect.
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
pillows, "act dead," and jump up to scare her. I d. He would put her under the
pillows and lay on them, making her feel like she was suffocating. R.A. felt
claustrophobic and would panic at this. R.A. stated that David did this to her
younger sisters as well.
On November 24, 2014, Cynthia sought an ex parte domestic violence
protection order on behalf of herself and her three daughters against David.
Cynthia presented a verified petition containing her declaration and counseling
records from her children as evidence. The petition stated that R.A. 's self-harm
stemmed from her fear of spending time with her father, and his past actions
'"pretend[ing]' to suffocate her" and history of domestic violence against R.A., her
sisters, and her mother. CP at 253-54.
The commissioner granted the emergency protection order on a temporary
basis pending a full hearing. This order was later modified to allow R.A.' s
younger sisters to visit their father and to otherwise follow the dissolution
parenting plan. Dissatisfied, David moved for a full testimonial hearing with
cross-examination ofR.A. Cynthia objected, contending that R.A. would be
traumatized by cross-examination and that the request itself was further evidence
of David's abusive nature. David's requests for a full evidentiary hearing and to
depose or subpoena R.A. were denied, and the commissioner set a hearing on the
motions. After the hearing, the commissioner issued a one-year protective order
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
allowing David some contact with R.A. and restraining him from causing harm,
injury, or harassment, subject to future orders in the dissolution action.
The day of the commissioner's ruling, perhaps coincidentally, R.A. again
attempted suicide. Based on R.A.'s continued self-harm, Cynthia moved for and
the court granted reconsideration of the order, including language that restrained
David's contact with R.A., excluding him from visiting her at home and school and
from coming within 100 yards of either. The modified order was still "subject to
future orders in a dissolution or paternity action." CP at 18-19. The final order was
effective until February 3, 2016.
David appealed. Among other things, David argued that his due process
rights were violated when he was denied a full testimonial hearing with the right to
cross-examine his child. Aiken v. Aiken, No. 73129-7-I, slip op. at 4 (Wash. Ct.
App. Nov. 9, 2015) (unpublished), The Court of Appeals
rejected his argwnent, concluding that under Gourley v. Gourley, 158 Wn.2d 460,
145 P.3d 1185 (2006) (plurality opinion), the trial court's refusal to allow crossexamination
ofR.A. did not violate David's due process rights. Id. at 6. The court
noted that "ample evidence" was presented to the trial court, which included the
guardian ad litem's (GAL) report, to "corroborate that R.A. twice attempted
suicide or self-harm due to fear of visitation with her father." I d. at 8. Therefore,
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
it concluded, David received due process protection and cross-examination was not
necessary. Id. Cynthia was awarded attorney fees on appeal. Id. at 11 (citing
RCW 26.50.060(1)(g); RAP 18.1; RAP 14.1-14.6). David then filed a petition for
review, which this court granted. Aiken v. Aiken, 185 Wn.2d 1017, 369 P.3d 501
David argues he had a right to cross-examine R.A. He substantially renews
the arguments we previously considered in Gourley. We take this opportunity to
clarify the ultimate holding of Gourley. While individual circumstances may
warrant the cross-examination and live testimony of child witnesses under due
process principles before a domestic violence protection order can be issued, there
is no statutory right to either under chapter 26.50 RCW. We leave the decision
whether to allow cross-examination in domestic violence protection order hearings
to the sound discretion of a commissioner or trial court judge subject to the normal
provision for review or revision. We also affirm the attorney fees award to
Chapter 26.50 RCW governs domestic violence protection order
proceedings. A protection order can be sought on the basis of "sexual assault of
one family or household member by another" or "the infliction of fear of imminent
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
physical harm ... between family or household members." RCW 26.50.010(3)(b),
(a). A person may petition for protection on behalf of minor household members.
RCW 26.50.020(1). Protection order proceedings are designed to provide
emergency relief to domestic violence victims and their children. Because many
victims are unable to retain counsel, the system is designed for use by pro se
litigants. See RCW 26.50.035; In reMarriage of Barone, 100 Wn. App. 241, 247,
996 P.2d 654 (2000).
Safeguards for both those seeking protective orders and those subject to
them are built into chapter 26.50 RCW. The petitioner must allege domestic
violence by an affidavit under oath, stating specific facts and circumstances from
which relief is sought. RCW 26.50.030(1 ). The court must order a hearing within
14 or 24 days upon receipt of the petition, depending on the type of service. RCW
26.50.050. The respondent must be served at least five days before the hearing.
RCW 26.50.050. But where the petition alleges that "irreparable injury" could
occur, the court may grant an "ex parte temporary order for protection, pending a
full hearing." RCW 26.50.070(1). The ex parte temporary order generally may
not exceed 14 days, but it can be continued if the hearing is continued. RCW
26.50.070( 4). After this hearing, the court may issue a protection order excluding
the respondent from a dwelling, prohibiting the respondent from coming within a
certain distance from the petitioner or a minor child, restraining the respondent
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
from having any contact with the petitioner or minor child, and granting other
relief as appropriate. See RCW 26.50.060(1 ). Where a protection order restrains
an individual from contacting his or her minor children, the restraint must be for a
fixed period not to exceed one year, renewable after another hearing. RCW
Whether a respondent in a domestic violence protection order proceeding is
entitled to cross-examine a child witness was explored in Gourley, which resulted
in five opinions, none garnering more than four signatures. Six justices, however,
agreed that due process may require cross-examination, but that Gourley had not
shown it was necessary in his case. Gourley, 158 Wn.2d at 470 (lead opinion of
J.M. Johnson, J.), 471 (Chambers, J., concurring), 472 (Quinn-Brintnall, J.P.T.,
David does not argue that chapter 26.50 RCW is facially unconstitutional.
He instead contends that the Court of Appeals misapplied Gourley and that his due
process rights were violated because he was not allowed to cross-examine R.A.
2 David contends eight justices in Gourley agreed that due process "requires" a testimonial
hearing and opportunity to cross-examine witnesses about disputed facts. Pet'r's Suppl. Br. at 1-
2. This point is not well taken. At most, three justices found due process to require a live
hearing and cross-examination. See Gourley, 158 Wn.2d at 471 (Madsen, J., concurring), 483
(Sanders, J., dissenting).
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
Due to conflicting evidence in the record before the trial court, David argues that
he should have been granted a hearing with testimony and cross-examination to
determine what was alleged and when the allegations occurred.3 As in Gourley,
we hold that chapter 26.50 RCW does not require a trial judge to allow live
testimony or cross-examination in every protective order proceeding. Instead,
whether live testimony or cross-examination is required will tum on the Mathews
balancing test. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.
2d 18 (1976).
Although David does not expressly argue that he has a statutory right under
chapter 26.50 RCW's "full hearing" language, he asks this court to "clearly set
forth in a unanimous opinion that a 'full hearing' includes the right to crossexamine
adverse witnesses." Pet'r's Suppl. Br. at 3. We take this occasion to
clarify the requirements of the chapter.
3 In his petition for review to this court, David asked us to examine the proper evidentiary
standard for protection orders that restrain a parent from his or her child. David's appellant brief
to the Court of Appeals argued that due to the substantial liberty interests involved in his case
(right to care for one's child, freedom of movement, and freedom against social stigma), a
preponderance of the evidence is insufficient. However, his petition for review does not raise
this as an issue and merely argues, in passing and without citation to authority, that the
preponderance of the evidence standard should be raised to clear, cogent, and convincing.
Furthermore, David does not specifically designate this issue for review. Absent argument or
authority in support, we decline to address this issue. RAP 10.3(a)(6) (appellate brief should
contain argument supporting issues presented for review, citations to legal authority, and
references to relevant parts of the record); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970
(2004) (citing Smith v. King, 106 Wn.2d 443,451-52,722 P.3d 796 (1986)).
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
The meaning of a statute is a question of law reviewed de novo. State v.
Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998). "[I]fthe statute's meaning is
plain on its face, then the court must give effect to that plain meaning as an
expression oflegislative intent." Dep 't of Ecology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 9-10 43 P.3d 4 (2002). The term "full hearing" is not defined in
chapter 26.50 RCW, but it is used twice. When the term is used, it is juxtaposed
against the "ex parte" hearing necessary for a temporary protection order. RCW
26.50.020(5), .070(1), (4).4 First, it is used in the statute concerning the
jurisdiction of the district and municipal courts in proteCtion order proceedings.
RCW 26.50.020(5). This provision explains that where the district or municipal
court jurisdiction is limited to issuance of a temporary order, the court must "set
the full hearing provided for in RCW 26.50.050 in superior court and transfer the
case." !d. (emphasis added). Second, RCW 26.50.070(1) explains that where
appropriate, the court can grant an ex parte temporary order for protection
"pending a full hearing." "A full hearing, as provided in this chapter, shall be set
for not later than fourteen days from the issuance of the temporary order .... "
RCW 26.50.070(4).
4 The Black's Law Dictionary definition of "full hearing" states that a full hearing requires notice
and ample opportunity to present evidence and argument, but it does not mention crossexamination.
BLACK'S LAW DICTIONARY 837 (10th ed. 2014).
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
Neither RCW 26.50.050 nor any other section ofthe statute defines the
terms "full hearing" or explains the procedural form a hearing must take. RCW
26.50.050 allows a party to attend a hearing via telephone to accommodate a
disability or, in extreme cases, to prevent further domestic violence. That section
also sets forth service requirements. It does not require that the judge take
testimony. See RCW 26.50.050. Instead, it contemplates that both sides will be
able to offer appropriate argument and evidence within the proper discretion of the
trial court. We conclude that there is no statutory right to cross-examine a minor in
a protection order proceeding.
David primarily argues that his due process rights were violated when the
court commissioner granted the protection order based solely on documentary
evidence. Whether David had a due process right to cross-examine R.A. is a
question of law we review de novo. Wash. Indep. Tel. Ass 'n v. Wash. Utils. &
Transp. Comm 'n, 149 Wn.2d 17, 24, 65 P .3d 319 (2003) (citing Wed en v. San Juan
County, 135 Wn.2d 678, 693, 958 P.2d 273 (1998)).
As the Gourley court recognized, chapter 26.50 RCW provides several
procedural protections:
(1) a petition to the court, accompanied by an affidavit setting forth
facts under oath; (2) notice to the respondent within five days of the
hearing; (3) a hearing before a judicial officer where the petitioner and
respondent may testify; (4) a written order; (5) the opportunity to move
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
for revision in superior court; (6) the opportunity to appeal; and (7) a
one-year limitation on the protection order if it restrains the respondent
from contacting [his or her] minor children.
Gourley, 158 Wn.2d at 468-69 (citing ch. 26.50 RCW; State v. Karas, 108 Wn.
App. 692, 699-700, 32 P.3d 1016 (2001)).
Due process may require cross-examination even in a civil proceeding where
the confrontation clause is not at issue. In re Det. of Brock, 126 Wn. App. 957,
963, 110 P.3d 791 (2005); see also State v. Dahl, 139 Wn.2d 678, 990 P.2d 396
(1999). "The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at
333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d
62 (1965)). Due process is a flexible concept; the level of procedural protection
varies based on circumstance. Id. at 334. In evaluating the process due in a
particular situation, we consider (1) the private interest impacted by the
government action, (2) "the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards," and (3) the government interest, including the
additional burden that added procedural safeguards would entail. Id. at 335.
Gourley and Mathews resolve the due process argument here. The first
Mathews factor weighs in David's favor. As in Gourley, David has a fundamental
liberty interest to make decisions regarding the care, custody, and control of his
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
daughter. 158 Wn.2d at 468 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.
Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality opinion)). Also like Gourley, David
was deprived of this interest only temporarily-he was restrained by the protection
order for one year and the modified order was subject to the dissolution action. !d.;
see also Mathews, 424 U.S. at 341 (quoting Fusari v. Steinberg, 419 U.S. 379, 389,
95 S. Ct. 533,42 L. Ed. 2d 521 (1975) ("possible length of wrongful deprivation
of' interest at stake "is an important factor in assessing the impact of' the
government action)).5
Also as in Gourley, the third Mathews factor weighs in favor of affirming
the trial court. The government has an equally compelling interest in protecting
children and preventing domestic violence or abuse. See Gourley, 158 Wn.2d at
468 (citing RCW 26.50.035's findings; LAWS OF 1993, ch. 350, § 1);6 In re
5 Washington has not necessarily required cross-examination of the minor child in instances
where a parent's contact with a minor child could be restricted. See In re Dependency ofH W.,
70 Wn. App. 552, 558, 854 P.2d 1100 (1993) (noting that due process was satisfied for the
purpose of a temporary shelter care hearing where the accused parent had access to statements
made by the children). Moreover, where the result of a hearing would only temporarily restrict a
purportedly abusive parent's access to a minor child, less process is due than termination
proceedings. See id. at 556-57 (considering the "obvious need for prompt and decisive action in
order to protect a child from possible abuse and neglect"); see also, In re Parentage of Jannot,
149 Wn.2d 123, 126-27,65 P.3d 664 (2003) (recognizing that petitions to modify a parenting
plan are initially evaluated based only on documentary evidence).
6 [D]omestic violence is a problem of immense proportions affecting individuals as well as
commtmities. . . . [It is] at the core of other major social problems including child abuse,
crimes of violence against person or property, juvenile delinquency, and alcohol and dmg
abuse .... [It costs] lives as well as millions of dollars each year ... for health care,
absence from work, and services to children.
LAWS OF 1993, ch. 350, § l.
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
Dependency of H W., 70 Wn. App. 552, 555, 854 P.2d 1100 (1993) ("equally
compelling interest in protecting the physical, mental and emotional health of the
Turning to the second Mathews factor, we note that even when as
fundamental a liberty interest as physical liberty is at stake, the United States
Supreme Court found that substitutes for live testimony such as affidavits,
depositions, and documentary evidence may be sufficient. Gagnon v. Scarpelli,
411 U.S. 778, 782 n.5, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). This court has
expressed a preference, but not a requirement, for live testimony and crossexamination
of child victims. See Gourley, 158 Wn.2d at 470 ("live testimony and
cross-examination might be appropriate in other cases"); In reMarriage of
Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003) ("where an outcome
determinative credibility issue is before the court in a [family law related]
contempt proceeding, it may often be preferable for the superior court judge or
commissioner to hear live testimony of the parties or other witnesses, particularly
where the presentation oflive testimony is requested" (emphasis added)).
Mathews's guarantee that a person must be heard at a meaningful time and
in a meaningful manner is protected by the procedures in chapter 26.50 RCW. The
chapter provides for a domestic violation protection petition supported by an
affidavit, notice, a hearing before a judicial officer where parties may testify, a
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
written order, the opportunity to revise the written order, the opportunity to appeal,
and a one-year limitation on the order. These procedures were followed in this
protection order hearing. And, as occurred in Gourley, David was permitted to
depose his then-wife Cynthia. Moreover, the GAL appointed in the Aikens'
divorce case interviewed the children and their counselors, filing a report as
evidence in the protection order proceeding.
Under Snohomish County Local Court Rule (SCLCR) 59, the commissioner
conducted a special set hearing that allowed argument from both parties and
considered documentary evidence. SCLCR 59(e)(3)(B). Substantial evidence was
presented to the commissioner in this hearing, including Cynthia's declaration; her
deposition; the GAL report; and medical records, including those of R.A. 's two
visits to the emergency room and psychological records. Although David did not
admit to any wrongdoing (unlike the father in Gourley, 158 Wn.2d at 470), the
evidence in this case reflects R.A. 's tangible fear of her father-fear he may
suffocate her, fear of his unpredictable temper, and fear from his history of
domestic abuse-a fear so consuming that R.A. attempted to harm herselfto avoid
contact with him.
It was well within the sound discretion ofthe commissioner to decide that
cross-examination in this case was unnecessary and would likely have harmed
R.A. The neutral GAL's report and the documentary evidence in the protection
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
order hearing evinced sufficient facts of abuse by David against R.A. Cynthia's
petition for the protection order contained R.A. 's hospital records from her
attempted suicide and counseling records detailing R.A. 's suicidal ideation,
depression, and posttraumatic stress disorder. David asserted that R.A. probably
overdosed because she broke up with her boyfriend. CP at 211 ("sometime during
the week of [R.A. 's first overdose], [she] apparently broke up with her boyfriend").
However, the record indicates that R.A. tried to hurt herself'"so [she] would
collapse and [she] wouldn't have to go with [her] Dad."' CP at 253. R.A. also
revealed to her school counselor that her father held "her down and 'pretends' to
suffocate her[, making] her feel very uncomfortable and scared." CP at 254. The
abundant independent evidence before the court supports the commissioner's
decision to deny cross-examination ofthe vulnerable child.
Cross-examination is a powerful instrument in eliciting truth or discovering
error in statements. State v. Eddon, 8 Wash. 292, 301, 36 P. 139 (1894). However,
cross-examination may also be used for purposes other than truth seeking. "The
nature and purpose of witness examination, however, are to elicit honest testimony,
not fearful responses, and to procure the truth, not cause intimidation." State v.
Foster, 135 Wn.2d 441,465, 957 P.2d 712 (1998) (plurality opinion). Here,
evidence before the trial court demonstrated that R.A. was too afraid of her father
to be honest about her feelings. In fact, she would try to act or say things '~ust
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
right" to "avoid his wrath." SCP at 446. R.A. told her counselor that her group
therapy sessions with her father were "unhelpful" because she was "afraid to talk
in front of' David. SCP at 263. All the Aiken children were "extreme[ly]
cautio[us] around [their] father," they did not "express [their] opinions," they did
not "disagree," and they were even "cautious with their facial expressions to
avoid" making him angry. SCP at 370. It is reasonable to conclude that R.A.
would have provided fearful responses under cross-examination and that she would
not have revealed any additional information than that already in evidence.
As with Gourley, we conclude that it was not an abuse of discretion for the
commissioner to deny David's request to cross-examine R.A. Under Mathews,
David's due process rights were not violated. As part of the Mathews balancing
test, trial court judges and commissioners should specifically weigh the likely
value of cross-examination against the potential damage that testifying may have
on the specific child. A bright line rule prohibiting cross-examination or live
testimony in protective order hearings is inappropriate, as it is the province of the
trial judge or commissioner to grant or deny cross-examination based on
individualized inquiries into the facts ofthe instant case.
Finally, David contends that the Court of Appeals erred in awarding Cynthia
attorney fees under RCW 26.50.060(1 )(g) because her underlying petition failed to
For the current opinion, go to
Aiken v. Aiken, No. 92631-0
request them. He cites RCW 26.09.140, the divorce proceedings statute, in
support. David makes no argument why the Court of Appeals' award of attorney
fees was improper, stating only that RCW 26.09.140 and RCW 26.50.060(l)(g)
contain different language. While Cynthia did not originally seek fees in the
underlying action, she was awarded costs and attorney fees pursuant to RCW
26.50.060(1)(g) and appellate fees and costs pursuant to RAP 14.1 through 14.6
and RAP 18 .1. An appellate court may award attorney fees where allowed by
statute, rule, or contract. Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 535,
79 P.3d 1154 (2003). If attorney fees are allowable at trial, the prevailing party
may recover fees on appeal. RAP 18.1. Additionally, this court upheld attorney
fees awarded on appeal in Gourley. 158 Wn.2d at 470.
Because David's due process rights were not violated in this case, Cynthia is
the prevailing party and attorney fees were properly rewarded at the Court of
Appeals. Furthermore, we grant her request for fees here.

For the current opinion, go to
Aiken v. Aiken, No. 92631-0
For the current opinion, go to
Aiken v. Aiken
No. 92631-0
MADSEN, J. (concurring in result)-I adhere to the view expressed in my
concurrence in Gourley v. Gourley, 158 Wn.2d 460, 471, 145 P.3d 1185 (2006),
concurred in by Justice Fairhurst, and by Justice Chambers in a separate concurrence, that
a '"full hearing"' under chapter 26.50 RCW includes the right to cross-examine witnesses
and that "due process requires the opportunity to cross-examine in a full hearing for a
one-year order of protection within the limitations of the applicable evidence rules." See
also id. at 477 (Sanders, J., dissenting).
As the dissent in Gourley pointed out, "Courts have long recognized crossexamination
is 'beyond any doubt the greatest legal engine ever invented for the
SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW§ 1367 (3d ed. 1940). See also
Goldberg v. Kelly, 397 U.S. 254, 269, 90S. Ct. 1011, 25 L. Ed. 2d 287 (1970) ('In almost
every setting where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses.'); In re [Marriage oj]
Rideout, 150 Wn.2d [337,]352[, 77 P.3d 1174 (2003)] ('it may often be preferable for the
For the current opinion, go to
No 92631-0
(Madsen, J., concurring in result)
superior court judge or commissioner to hear live testimony of the parties or other
witnesses')." Id. at 480 (Sanders, J., dissenting). Thus, cross-examination is an
important tool for testing truth, whether in a criminal or a civil proceeding.
In balancing the concerns in a civil protection order proceeding for purposes of
deciding what due process requires, the majority points out that the duration of a
domestic violence protection order is only one year and is subject to modification. But,
our legislature has tacitly recognized that a year in a child's life is much longer in terms
of impact on the parent-child relationship. See RCW 13.34.020 (providing that "[t]he
right of a child to basic nurturing includes ... a speedy resolution of any proceeding
under this chapter"). This court has also acknowledged the impact oftime frames on
small children in this context. See In re Welfare of Hall, 99 Wn.2d 842, 851, 664 P.2d
1245 (1983) (quoting Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best
Interests of the Child 43 (1973)), for the proposition that "'[t]hree months may not be a
long time for an adult decisionmaker. For a young child it may be forever."' Moreover,
the consequences of a protection are far reaching and, if violated, may lead to criminal
charges against a parent. And, although there is no reason to believe that Cynthia Aiken
sought advantage through the use of the protection order process, there are certainly cases
where that may be true, and in such a case, cross-examination would be especially
important for finding the truth.
Nevertheless, I concur in the result of the majority. Here, David Aiken complains
that he was denied the right to cross-examine his daughter. But Cynthia Aiken was the
For the current opinion, go to
No 92631-0
(Madsen, J., concurring in result)
petitioning party, not the child. Presumably, Cynthia Aiken was available for crossexamination.
Under the rules of evidence, the trial court has discretion to limit witnesses
for a variety of reasons. On this record, the trial court did not abuse its discretion in
declining to permit the child to be called as a witness and therefore she was not subject to
cross-examination. The medical records from the child's counselor and psychiatrist
regarding the child's mental health, which were properly admitted, supported the trial
court's decision granting the protection order in this case.
I concur in the result.
For the current opinion, go to
No 92631-0
(Madsen, J., concurring in result)
For the current opinion, go to

Outcome: While circumstances and due process principles may warrant crossexamination
and live testimony of minors in some domestic violence protection
order hearings, there is no statutory right to either under chapter 26.50 RCW. In
this case, we hold that the Court of Appeals properly interpreted Gourley and that it was not an abuse of discretion for the court commissioner to deny live testimony or cross-examination. We affirm.

Plaintiff's Experts:

Defendant's Experts:


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